Under Section 8 of the Canadian Charter of Rights and Freedoms, “Everyone has the right to be secure against unreasonable search or seizure”. This means that all Canadians have the right to protection against having our privacy violated or property seized without reasonable cause. Law enforcement cannot check our person (in a ‘pat down’), our permanent residence, the contents of a vehicle, or even our hotel room without just cause, such as reasonable grounds that we committed an offence.
In two cases involving Ontario High School students, courts found that the students’ right to be secure against unreasonable search or seizure was violated. The first is a landmark case, R. v. A.M., 2008, in which the Supreme Court of Canada decided that sniffer dogs cannot be used by law enforcement to conduct random searches of public places. A student’s Charter rights were violated when a police officer searched his unattended backpack in a school gymnasium after sniffer dogs identified drugs in it. The Supreme Court held that a ‘well-educated guess’ does not constitute reasonable grounds.
More recently, in Simon Gillies et al v. Toronto District School Board, 2015, a Toronto High School principal was challenged for requiring all students to perform a mandatory breathalyzer test before attending their High School prom. The judge found that mass breathalyzer screening is a disproportionate reaction and more than minimally intrusive, and a violation of the students’ rights to be free from unreasonable search or seizure.
Under Canadian law, there is a presumption that a search without a warrant is unreasonable. The general rule for a lawful search is that police need prior authorization (such as a search warrant) and reasonable and probable grounds. A search should not exceed the purpose of an investigation. Police are generally not allowed to search a person unless they are making an arrest.
If police officers ask whether they can search your home or car, you have the right to ask why they are requesting the search. You are under no obligation to allow them to search without a warrant. Except in emergency circumstances or if they suspect an ongoing crime, police cannot enter your home unless you invite them or they have a warrant. Even if invited into your home, officers do not have the right to search without permission or a warrant.
Under any circumstances involving search or seizure of your property, it is always in your best interests to consult with an experienced criminal defence lawyer to determine your legal rights.
See also: searches incident to arrest. If evidence against you was obtained through an unlawful search or seizure, speak with a criminal defence lawyer. Contact the Law Firm of Ted Yoannou.